Sheikh Hakim Ali, J.--Land Acquisition Collector, the acquiring agency, along with National Highway Authority, Lahore, for whom the land was acquired and Javed Malik & others, from whom the land was acquired, for the construction of Additional Carriageway in Lahore-Sahiwal Section are the aggrieved parties from the one and the only judgment dated 5.09.2006, delivered in R.F.A.No, 495 of 2004 by the Lahore High Court, Lahore. Both these parties have filed the above noted two Civil Appeals Bearing Nos, 2057 and 2058 of 2006 against the aforementioned judgment.
Therefore, both these appeals are being disposed of through this single judgment.
2. To shorten the facts, it may be stated that for the construction of Additional Carriageway for Lahore-Sahiwal Section, a notification under Section 4 of the Land Acquisition Act, 1894 was issued by the Land Acquisition Collector on 20.10.1993. The owned land of Javed Malik and others, measuring 10 Kanals 3 Marlas was acquired through award dated 24.12.1994. The Land Acquisition Collector assessed the price of the land at the rate of Rs,301.83 per marla and also granted compensation for the superstructure built thereon, which was in the form and shape of Petrol Pump, Service Station, 20 Shops, Hotel and Mosque, which compensation for the whole was fixed to the extent of Rs,7,26,839.83 by the Land Acquisition Collector. Dissatisfied with the award dated 24.12.1994 the land owners namely, Javed Malik and others filed a reference under Section 18 of the Land Acquisition Act before the Land Acquisition Collector for its onward transmission to the learned Referee Court, which was filed before the Collector on 25.04.1995. Before the learned Referee Court both the parties produced their evidence. Muhammad Afzal, general attorney had appeared on behalf of land owners and got recorded his statement as AW-1, while the learned advocate of the land owners produced 12 mutations, which were received into evidence as Exh.A-1 to Exh.A-12. On behalf of respondents, Muhammad Usman Ghani, Land Acquisition Collector, National Highway Authority Lahore, appeared as RW-1, who produced a letter dated 21.07.1994 (Exh.R-1), the copy of the receipt of compensation Exh.R-2 and the copy of award as Exh.R-3 and closed the evidence. Learned Referee Judge, (Senior Civil Judge, Kasur) on 20.09.2004 accepted the reference partly by enhancing the price of land up-to Rs,1500/- per marla and granted them 15% compulsory acquisition charges and compound interest at the rate of 8% from date of possession. This judgment was appealed against before the learned Lahore High Court, Lahore, which was again partly accepted, as compensation from Rs,1500/- was increased to Rs,3000/- per marla through the impugned judgment dated 5.09.2006, passed by the learned Division Bench of the Lahore High Court, Lahore. Hence these two appeals.
3. The learned counsel appearing on behalf of the Land Acquisition Collector and another submits that price was wrongly enhanced by the learned Division Bench of the Lahore High Court, Lahore, as according to Section 25 of the Land Acquisition Act, 1894, it could not be increased due to the barring provision of that section as land owners had failed to file claim before the Land Acquisition Collector, under Section 9 of the Act. Further submits that mere production of copies of mutations were not sufficient to increase the price on the basis of these mutations. It was the duty of owners to prove these mutations by bringing into evidence the persons who had sold or purchased the land entered into these mutations. He has referred to a judgment of learned Peshawar Court published in 2003 YLR 3287 (Liyar Khan Vs. Land Acquisition Collector/AC. Swabi). Further submits that reference filed before the Collector was barred by limitation, and it should have been dismissed on this point, rather than to be accepted.
4. Learned counsel appearing on behalf of Javed Malik and others, the owners, submits that as no notice was served by the Collector, at the time when he had made the award, therefore, the filing of reference, within six months was quite within limitation, as provided by sub-section (2)(b) of Section 18 of the Land Acquisition Act, 1894. In this respect, when the learned counsel for the acquiring agency was asked to controvert and explain, it was admitted by him that no notice as required by the above noted section was served upon the owners, therefore, he has withdrawn his objection of limitation.
5. Learned counsel for the owners has also submitted that the land acquired was admittedly of commercial nature whereon Shops, Hotel, Petrol Pump, Service Station and Mosque were constructed and was also on the front of main National Highway running from Lahore to Karachi near Patoki, therefore, the assessm ent of compensation for the land was wrongly made by the Land Acquisition Collector (to be noted as Collector hereinafter. As the commercial nature of the land was admitted by RW-1, Muhammad Usman Ghani, the Land Acquisition Collector in his statement and no objection was raised at the time of bringing into evidence the mutations, it was not necessary for the land owners to produce any more evidence of purchasers or sellers of these mutations into witness box. No rebuttal evidence was brought by the Collector with reference to these mutations to rebut the price claimed by the land owners, as corroborated by the price mentioned in these mutations. Therefore, the land owners were entitled to compensation to the tune of Rs, 10,000/- per marla as price of land.
6. We have heard the learned counsel and have examined the available record. Before proceeding on the merits of the case, it would be necessary to deal with the legal objection raised by learned counsel for the Land Acquisition Collector, with regard to the applicability of Section 25 of the Land Acquisition Act to the facts and circumstances of the case. It has been admitted by the learned counsel that notices under Section 9 were not issued to the land owners and no such plea was ever raised before the learned Referee Court. Therefore, no such notices were ever produced before the learned Referee Judge in the case. From these admissions, the objection of Section 25 has lost its significance. However, to dilate upon these point of objection, it is necessary to have a look on the provisions of Sections 9 and 25 of the Land Acquisition Act, which are reproduced as under :-- "Section 9: Notice to persons interested.--(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections (if any) to the measurements made under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue-district in which the land is situate.
(4) In case any person so interested resides elsewhere, and has no such agent, the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and registered under Part III of the Indian Post Office - Act, 1866.
Section 25: Rules as to amount of compensation.--(1) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.
(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector."
7. According to Section 9 of the Land Acquisition Act, Collector is bound to cause public notice to be given at convenient places on or near the land to be taken and to serve notice on the occupier and on all such persons interested therein or to be entitled to act for persons so interested, as reside or have agents to accept service on their behalf within the revenue district concerned. He has also been directed by that Section to serve notice through post, if the persons so interested are not residents of the revenue district, in which the land is situated. This mandatory compliance of Section 9, if has been made by the Land Acquisition Collector, then in that event the provision of Section 25 of Land Acquisition Act can be invoked by the Collector as well as by the persons for whom the land has been acquired. The learned Referee Court is prohibited to grant compensation more than the amount claimed by the applicant/applicants or less than the amount awarded by the Collector, if the notices as enumerated above were given under Section 9 of the Land Acquisition Act by the Collector, otherwise the learned Court was not prohibited to grant compensation, in accordance with the assessed price of the land acquired. It may be noted here that provision of Section 25 are penal, stringent and restrictive in nature in respect of the fixation of compensation, therefore, its preceding essentialities have to be complied with, otherwise provision of Section 25 cannot be invoked or enforced to tie the hands of the learned Referee Court. For, this purpose, AIR 1930 Calcutta 471 [Tara Prasad Chaliha Vs. Secy of State and another), AIR 1964 Patna 83 (State of Bihar Vs. Anant Singh and others), AIR 1974 Karnatak 74 (Special Land Acquisition Officer Vs. Sanaqouda Paraqouda Patil) PLD 1965 Karachi 573 (The Collector of Karachi Vs. Fida Hussain Muhammad Ali Lotia and others) 1983 CLC 1542 (Deputy Commissioner Vs. Abdul Karim Mossa and others) 1985 SCMR 45 (Hyderabad Development Authority and another Vs. Kamran Khan Shoro) PLD 1990 Peshawar 83 (Afzal Shah Vs. Land Acquisition Collector and others) are the judgments which are relevant and lay down the above noted law. It may also be stated that it was the duty of the respondent/Collector before the learned Referee Court to raise such a point of objection, get an issue framed from that learned Referee Court, and to produce the notices if transmitted to land owners, as required by Section 9 of the Land Acquisition Act into the evidence, otherwise it would be late in the day to make hue and cry or to construct an edifice on this basis, at this stage. As no such effort or exercise was made by the Collector, therefore, it is mere an objection, having no relevance with the case and requires no consideration from this Court.
Therefore, this objection is held to be of no legal force.
8. As regard the fixation of price of the land in dispute, facts are admitted. The land in dispute was of a commercial nature having Hotel, Shops, Service Station, Petrol Pump and Mosque. The award of compensation for the superstructure by the Collector itself corroborates this, fact and the admission of RW-1, Muhammad Usman Ghani supports the case of land owners, made in his statement, before the learned Referee Court. In these circumstances, when the Collector had failed to rebut the evidence of mutations produced by the owners in the Referee Court, through any other evidence, the mutations, which were exhibited in evidence without any objection could not be overlooked, discarded or thrown away from the record to assess the correct compensation. The assessm ent of compensation has to be made justly and fairly. Keeping in view the facts and circumstances of the given case, it has not to be excessive so as to burden the exchequer unfairly and illegally and not too lesser as to cut the pocket of the land owners from their legal right and due share. Balance has to be kept in between these two.
9. In these circumstances, when there is no controversial or rebuttal evidence on the record, there is no alternative but to accept the price mentioned in the mutations produced by the land owners in the case. Exh.A-1, A-3, A-6 and Exh.A-8, are those mutations which have contained no mention of price in it, therefore, these mutations are discarded from consideration. Mutation No, 1958 dated 23.12.1993 has been produced twice. Thereafter remains only 5 mutations whose numbers are as under :-- "Mutation No, 1958 Exh.A-2, sanctioned on 23.12.1993, Mutation No, 1962 Exh.A-4, attested on 18.12.1993, Mutation No, 1968 Exh.A-5, sanctioned on 23.12.1993, Mutation No, 1964 Exh.A-7, sanctioned on 22.12.1993, Mutation No, 1971 Exh.A-10, sanctioned on 16.01.1994."
After calculating the total price mentioned in these mutations and dividing it on the lands, alienated through these mutations, the average price of all these mutations have been calculated by us, which have become an average price of Rs,5527.60 paisa per marla. Therefore, according to this evidence and calculation of the price, the land owners are entitled for this price.
10. Accordingly, we dismiss Civil Appeal No, 2057 of 2006, filed by Land Acquisition Collector and another Vs. Javed Malik and others, while partly accept Civil Appeal No, 2058 of 2006 (Javed Malik and others Vs. Land Acquisition Collector and another) by enhancing the amount of compensation of Rs,3000/- per marla, as fixed by learned Division Bench of the Lahore High Court to Rs,5527.60 per marla, with all the benefits of compulsory acquisition charges and the interest as maintained by the learned Division Bench of the Lahore High Court, Lahore.